(1991) LCN/2472(SC)

In the Supreme Court of Nigeria

Friday, March 1, 1991

Case Number: SC. 214/1987














5. BEBEDICT ONOKPASA (For themselves and behalf of the Idiemo family)




2. DAMUGOLO ERAKPOTOBOR (For themselves and behalf of the Enaide Family of Mereje)



“It is the duty of the trial Judge to evaluate the evidence and to make primary findings of fact. This duty, unless it is shown not to have been done according to well laid down principles of law, an appeal court cannot interfere with such findings” (Per Olatawura, J.S.C.)

O.OLATAWURA, J.S.C. (Delivering the  Judgment of the Court)

This appeal arose out of two consolidated suits which were separately instituted by both parties in Sapele Judicial Division of the Bendel State High Court. The appellants were the defendants in the first suit filed by the respondents, whilst the respondents were the defendants in the second suit instituted by the appellants. The issue at stake is the ownership of a parcel of land called by different names, a practice not unusual in land matters. The suit by the present respondents: S/34/69 against the present appellants was filed on 25/11/69. The other suit S/2/71 was filed by the present appellants. Both suits were later consolidated. The present respondents were plaintiffs whilst the present appellants were defendants in the court of trial. In their amended statement of claim, the plaintiffs claimed against the defendants as follows: ‘As against all the defendants

(1) A declaration of title to that parcel of land at Mereje sub-clan Okpe, Western Urhobo known as Okpirien or Okinokwa land lying between Ovbivbi stream and Ore Stream along Sapele/Warri Road in an area edged yellow in plaintiffs plan No. AR. 1005 filed in this suit.

(2) The sum of N500 being general damages for trespass when the defendants entered on a portion of the land without plaintiffs’ permission to disturb the plaintiffs in their use of the land in November, 1969. (3) Injunction to restrain the defendants and their agents from further acts of trespass on the land. As against the 5th Defendant only (4) An order of forfeiture against the 5th defendant only in respect of that portion of the said Okpirien land edged black in plaintiffs plan adjacent to the area edged green in the plan in which is inscribed the words ‘Trinity College Okwidiemo Grammar School for Boys’ or the payment of rent in lieu of forfeiture.’ Pleadings were ordered and delivered. The facts relied upon by the plaintiffs in the court of trial were that the plaintiffs ancestor was one Enaide. The action was filed in a representative capacity on behalf of Enaide Family of Mereje. The land in dispute is situate on the left side of Sapele/Warri Road after Adeje and is part of Mereje land. The defendants who are of ldiemo Family are members of Erhuohwo family of Ugolo, Okpe. The original home of the parties is Ororokpe. It was founded by four brothers: Orhue, Evrike, Esezi and Orhua. It was during the reign of the first Esezi and after his assassination that people fled into all directions. This assassination led to an upheaval, and consequently a one-time community became small settlements around the original settlement. Both Udegbeme and Odorume from Orhue Quarter founded Mereje Village. Their descendants founded other settlements within the virgin forests in Mereje Village. Enaide who was the son of Udugbeme founded a place called Okwuvo and he later cleared the land in dispute called Okpirien land. The land was blessed with palm trees, hence Enaide and his people collected a lot of palm fruits. The place is also called Okinokwa. Enaide family exercised maximum acts of ownership over the land in dispute: built farm huts on the land and fished in the streams and ponds. Apart from fishing, they also hunted on the land. There were also economic trees and cash crops like rubber and cocoa.   The cause of the dispute was the challenge to their title by the defendants (1-4) who claimed the land in dispute as the property of Idiemo family. It is the version of the plaintiffs that Idiemo came from Ugolo. He collected palm fruits on the land but paid tribute in the form of palm oil. The 5th defendant applied to be joined and was joined by the court as a 5th defendant on 3/4/70. The 5th defendant is related to both parties. The 5th defendant approached the plaintiffs family for a piece of land on which to build a school. His request was granted but subject to the payment of rent after the school could have been well-established. He built the school, Trinity College but later turned round to disown the plaintiffs and switched over to the defendants to enter into a private arrangement about the ownership and title of the plaintiffs, hence the claim for forfeiture against him. The defendants case (i.e., the 1st_4th defendants) was that the plaintiffs are not Okpe citizens. They denied that Enaide, the plaintiffs’ ancestor was one of Orhues descendants who fled Ororokpe after the upheaval following the assassination of Esezi. It was their case that Udugbome was not the father of Enaide and Enaide did not found any village in Okpe. He was, according to the defendants, a slave to one Okokor the daughter of Okpo who was the defendants ancestor. Enaide grew up and later got married to one of Okpos slaves, it was that union that led to the birth of ‘Idiemo.’ This Idiemo was not the same Idiemo who was the defendants grandfather. The plaintiffs’ Idiemo was, according to the defendants, called Idiemo-Enaide. It was the defendants ancestor who settled the plaintiffs ancestor in Okuwo. This Okuwo is beyond Ovwivwi stream, which is the boundary of Emereje clan and Ugolo clan. The defendants denied that the land in dispute is called Okpirien or Okinokwa but that the land called Okpirien had been litigated upon in an earlier suit S/6/68 and that it was in that suit that the plaintiffs counsel acknowledged this fact. The Solicitors letter was admitted in the course of the proceedings as Exhibit K. With regard to the village called Iginene, the defendants evidence was that the village can still be traced on the land in dispute and that it was founded by a descendant of Okpo, the defendants ancestor.

The defendants maintained that the land on which the 5th defendant built his school – Trinity College – was granted to the 5th defendant by Idiemo people who are the owners of the parcel of land. The defendants also executed various acts of ownership farming and fishing. Although the 5th defendant did not file a separate statement of Defence, his fortune in the case is tied to the outcome of the case if in favour of the defendants. He gave evidence, he denied the title of the plaintiffs. He admitted that the land belongs to the defendants from whom he took a conveyance. He admitted building the Trinity College on the land in dispute, although the school was closed down as at the time the case was being tried. He also confirmed that the land is not called Okpirien. After the conclusion of evidence both counsel addressed the court. After a painstaking review of the evidence and considerations of the submissions made, the learned trial Judge Akpovi, J., (as he then was), dismissed the defendants claims in suit No.S.2/71 and gave judgment for the plaintiffs in respect of THEIR CLAIMS IN SUIT No. S./34/69. The land granted to 5th defendant on which the Trinity College was built was also forfeited, but the learned trial Judge gave him the opportunity ‘to negotiate a settlement with the plaintiffs as to a new tenancy.’ The defendants appealed against that decision to the Court of Appeal. In a unanimous decision, Coram, Eboh, Musdapher and Ajose-Adeogun, J.J.C.A., the appeal was dismissed. A further Notice of Appeal to this court was filed by the Appellants. The following grounds of appeal filed against the judgment of the lower court read as follows:

‘(i) The Court of Appeal erred in law and on the facts in failing to uphold the submission that the traditional evidence given by the two parties is inconclusive and the case can only properly be determined by reference to recent acts of ownership and possession within living memory. (ii)  The Court of Appeal erred in law and on the facts in failing to give due weight and consideration to various acts of ownership and possession put forward by the Appellants herein in support of their case. Particulars (a) evidence of selling or leasing of the land in dispute by the Appellants; (b) a portion of the land in dispute was leased to the 5th appellant by the appellants and he exercised acts of possession thereon; (c) various other acts of possession put forward by the appellant. (iii) The Court of Appeal erred in law and on the facts failing to attach any probative value to the admission contained in Exhibit K. (iv) The Court of Appeal erred in law and on the facts in giving no consideration or no adequate consideration to the evidence relating to acts of possession (by the appellants) of land adjacent to the land in dispute.’ Briefs were filed by both parties. In the appellants brief the following issues were raised by the appellants: “(i) Whether the learned justices of the Court of Appeal were right in affirming the decision of the teamed trial Judge to reject the traditional evidence of the appellants? (ii) Whether the learned Justices of the Court of Appeal were right in failing to hold that the learned trial Judge did not consider properly and/or at all the evidence of acts of possession given by the appellants? (iii) Whether the learned Justices of the Court of Appeal were right in failing to hold that the learned trial Judge did not consider properly and/or at all the evidence of ownership of surrounding parcels of land given by the appellants? and (iv)Whether Exhibit K was not an admission to which some probative value ought to have been given?’ Whereas the respondents have formulated the following issues: ‘(i) Whether the Court of Appeal was right in affirming the findings of fact which the lower court arrived at after a careful examination and appraisal of the evidence before the court. (ii) Whether the Court of Appeal was right in confirming the view of the trial court that Exhibit K does not constitute any admission by the respondents on which the appellants can rely as admission against the interest of the respondents. (iii) Whether any act or acts of possession enjoyed by a customary tenant as in this suit with leave of the owner or founder of the land in dispute can defeat the claim for a declaration of title to the land by the true owner or founder of the land in dispute.’ In his oral submission in amplification of the appellants brief, Mr. Sofunde, S.A.N., the learned counsel for the appellants, after adopting his brief referred to Issue No. 1. The learned Senior Advocate drew our attention to specific passages in the judgment of the trial court and pointed out why the trial court rejected the defendants evidence. Conflicts in the evidence of the defendants, that it was impossible to have deforested the entire area including four villages and that the question of Enaide being a slave is bizarre and hard to accept. Learned Senior Advocate then submitted that the learned trial Judge did not pinpoint the conflicts; learned Senior Advocate then pointed to the passage where the Court of Appeal considered the area of conflict but concluded that the trial court came to the right decision. On issues II and III, learned counsel referred to paragraph 4-1 of this brief on the issue of extinct village of Iginene, and drew our attention to Exhibits C and D i.e. the parties plans. Exhibit D was drawn by the Survey Department in 1959. He pointed out that the extinct village is part of the land in dispute. With regard to the evidence of possession and ownership, he referred to the evidence on the exercise of ownership; farming etc. Also, there was evidence that the 4th defendant lives on the land in dispute, but that the learned trial Judge did not evaluate the evidence. He referred to p.170 line 16 to page 179 line 9. Learned counsel then submitted that the Court of Appeal failed to deal with specific issues relating to acts of possession. He asked for a retrial if the court accepts his submissions. On the 4th issue which deals with Exhibit K, Learned Counsel then pointed to what he considered to be an admission on part of the respondents that the land does not go beyond Ovbiubi stream. He finally urged that the appeal be allowed. In his own reply, Chief

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